CRIMES INVOLVING MORALS AND DECENCY

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					CRIMES INVOLVING MORALS AND DECENCY/CRIMES
AGAINST PUBLIC ORDER

18.2-346 Being a prostitute or prostitution

Elements
   (A) being a prostitute
   - commits commit adultery, fornication, or an act described in Va. Code Ann. §
       18.2-361 (carnal knowledge of animal, or of a person by the anus or by or with
       the mouth)
   - for money or its equivalent
   - or offers to commit adultery, fornication, or an act described in Va. Code Ann. §
       18.2-361 and does any substantial act in furtherance thereof
   (A) soliciting prostitution
   - offers mone y or its equivalent
   - to another
   - for the purpose of engaging in sexual acts as enumerated in section (A)

Crime involving moral turpitude
        A conviction under either section of this Virginia statute is a crime involving
moral turpitude. See, e.g., Matter of W, 4 I&N Dec. 401 (BIA 1951). In Matter of W, the
BIA interpreted a statute that punished the commission or offering to commit any act of
prostitution or lewd or indecent act. The BIA held that a violation of city ordinance
relating to prostitution was a crime involving moral turpitude. Therefore, a conviction
under this statute is a crime involving moral turpitude.

Aggravated felony
        Prostitution
        A conviction under this statute is not an aggravated felony because the offense
does not relate to the owning, controlling, managing, or supervising of a prostitution
business as described in 8 U.S.C. § 1101(a)(43)(K)(i). Nor does the offense relate to the
transportation of a person for the purpose of prostitution for commercial advantage as
described in 8 U.S.C. § 1101(a)(43)(K)(ii).
        Sexual abuse of a minor
        A conviction under this statute is not necessarily an aggravated felony as a sexual
abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) because there is no element that a
minor be involved in the prostitutio n. However, if the facts show that a minor was
involved with the prostitution, this offense is probably an aggravated felony under 8
U.S.C. § 1101(a)(43)(A). See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) (holding
that a conviction for sexual assault was a sexual abuse of a minor offense because the
court determined the age of the victim); Matter of Babaisakov, 24 I&N Dec. 306 (BIA
2007) (no need to consult record of conviction for factual element of deportation ground);
but see Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (conviction under unlawful sexual
contact statute that contained no element of the involvement of a child was not a sexual
abuse of a minor aggravated felony because under the categorical approach the offense
was not a sexual abuse of a minor offense).


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Other immigration consequences
        A conviction under this statute renders a non-citizen inadmissible from the U.S. 8
U.S.C. § 1182(a)(2)(D) provides that non-citizens who are prostituted or who have
engaged in prostitution within 10 years of their applications for admission or a green card
are inadmissible.

18.2-370 Indecent liberties

Elements
(A)
- lascivious intent
- knowingly and intentionally
- do one of the following acts:
    (i)     expose sexual or genital parts to child or propose that child expose sexual or
            genital parts to such person; or
    (ii)    propose that any child feel or fondle the sexual or genital parts of such person
            or propose that such person feel or fondle the sexual or genital parts of such
            child; or
    (iii)   propose to such child the performance of an act of sexual intercourse; or
    (iv)    entice, allure, persuade or invite any child to enter any vehicle, room, house or
            other place for any purposes above
(B)
- lascivious intent
- knowingly and intentionally
- receive money, property, or any other remuneration for allowing, encouraging, or
    enticing any person under 18 to perform in or be a subject of a sexually explicit visual
    material

Crime involving moral turpitude
         A conviction under this statute is a crime involving moral turpitude. The BIA has
held tha t the offense of indecent liberties is a crime involving moral turpitude. See
Matter of Garcia, 11 I&N Dec. 521 (BIA 1966); Matter of G, 6 I&N Dec. 461 (BIA
1954). In Matter of Garcia, the respondent was convicted under a statute for taking
indecent liberties with a nine-year old girl without committing or intending to commit the
crime of rape. A conviction under this Virginia statute is a crime involving moral
turpitude because even though the statute does not require touching, it is still an offense
that is sexual in nature against a child. In addition, the statute contains a mens rea of
“knowing and intentionally.” Therefore, a conviction under this statute is a crime
involving moral turpitude.

Aggravated felony
        Sexual abuse of a minor
        A conviction under this statute is an aggravated felony under 8 U.S.C. §
1101(a)(43)(A) (sexual abuse of a minor). The BIA has held that a criminal offense is an
offense relating to sexual abuse of a minor under 8 U.S.C. § 101(a)(43)(A) even if there
is no touching of the child required under the statute. See Matter of Rodriguez-



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Rodriguez, 22 I&N Dec. 991 (BIA 1999) (holding that indecency with a child by
exposure is an aggravated felony as a sexual abuse of a minor offense under 8 U.S.C. §
(a)(43)(A)); see also U.S. v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) (holding that
a statute punishing indecent liberties with a child was a conviction for an aggravated
felony as sexual abuse of a minor).

Other immigration consequences
       A conviction under this statute will probably subject a non-citizen to the ground
of deportability as a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i).

18.2-370.1 Taking indecent liberties with child by person in custodial or supervisory
relationship

Elements
- adult who maintains custodial or supervisory relationship with a child under 18
- lascivious intent
- knowingly and intentionally:
   (i)    propose that any such child feel or fondle the sexual or genital parts of such
          person or that such person feel or handle the sexual or genital parts of the
          child; or
   (ii)   proposes to such child the performance of an act of sexual intercourse; or
   (iii)  exposes his or her sexual or genital parts to such child; or
   (iv)   proposes that any such child expose his or her sexual or genital parts to such
          person; or
   (v)    proposes to the child that the child engage in sexual intercourse, sodomy, or
          fondling of sexual or genital parts of another; or
   (vi)   sexually abuses the child

Crime involving moral turpitude
        A conviction under this statute is a crime involving moral turpitude. See analysis
for Va. Code Ann. § 370 (indecent liberties).

Aggravated felony
       Sexual abuse of a minor
       A conviction under this statute is an aggravated felony under 8 U.S.C. §
1101(a)(43)(A) (sexual abuse of a minor). See analysis for Va. Code Ann. § 370
(indecent liberties).

Other immigration consequences
       A conviction under this statute will probably subject a non-citizen to the ground
of deportability as a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i).




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18.2-371 Contributing to the delinquency of a minor

Elements
- person over 18, including parent of any child
                   (i)    willfully contributes to, encourages, or causes any act,
                          omission, or condition which renders a child delinquent, in
                          need of services, in need of supervision, or abused or
                          neglected as defined in Va. Code Ann. § 16.1-228; or
                   (ii)   engages in consensual sexual intercourse with a child 15 or
                          older not his spouse, child, or grandchild

Crime involving moral turpitude
        A conviction under this statute is not necessarily a crime involving moral
turpitude. It is necessary to look at the record of conviction to determine the offense for
which the defendant was convicted. The Virginia Supreme Court has held that a
conviction under a former version of this statute is not a crime involving moral turpitude
because its scope is broad and encompasses crimes that do not involve moral turpitude.
See Tasker v. Comm., 121 S.E.2d 459 (Va. 1961) (holding that cross-examination of a
witness who had been convicted under this statute would not be allowed for impeachment
purposes because the crime did not involve moral turpitude). However, the holding of
the Virginia Supreme Court as to whether this offense is a crime involving moral
turpitude does not control for the analysis of whether the offense is a crime involving
moral turpitude under the immigration laws.

        (i) Rendering a child in need of supervision
        A conviction under this section of the statute is not a crime involving moral
turpitude. A defendant can be convicted under this statute for rendering a child “in need
of supervision,” which is defined as a child who, “while subject to compulsory school
attendance, is habitually and without justification absent from school.” Va. Code Ann. §§
18.2-371, 16.1-228. Such a crime does not involve moral turpitude because it does not
involve willful abandonment of a child where the child is left in destitute or necessitous
circumstances. See Matter of R, 4 I&N Dec. 192 (BIA 1950); Matter of S, 2 I&N Dec.
553 (BIA 1946).

        (i) Rendering a child delinquent
        A conviction under this section of the statute is not necessarily a crime involving
moral turpitude. Virginia Code § 18.2-371 cites Va. Code Ann. § 16.1-228 for the
definition of what is a delinquent child for the offense of contributing to the delinquency
of a minor. The definition of “delinquent act” under Va. Code Ann. § 16.1-228 is:
        (i) an act designated a crime under the law of this Commonwealth, or an
        ordinance of any city, county, town or service district, or under federal law, (ii) a
        violation of Va. Code Ann. § 18.2-308.7 (possession of a handgun), or (iii) a
        violation of a court order as provided for in Va. Code Ann. § 16.1-292, but shall
        not include an act other that a violation of Va. Code Ann. § 18.2-308.7, which is
        otherwise lawful, but is designated a crime only if committed by a child




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        The provision of Va. Code Ann. §§ 18.2-371 and 16.1-228 punishing contributing
to the delinquency of a minor is a broad statute that encompasses acts that do not involve
moral turpitude. Namely, if the defendant does any act that encourages a child to break
any law, that parent can be convicted under the statute. The BIA has held that similar
statutes did not involve moral turpitude without examining the record of conviction. See
Matter of W, 5 I&N Dec. at 240; Matter of F, 2 I&N Dec. 610 (BIA 1946); Matter of P, 2
I&N Dec. 117 (BIA 1944).
        For example, in Matter of W, the BIA considered a Canadian contributing to the
delinquency of a minor statute that punished willfully contributing to a child’s being or
becoming a juvenile delinquent. The definition of “juvenile delinquent” under the statute
was “any child who violates an provision of the criminal code or who is guilty of sexual
immorality or similar form of vice, or who is liable by reason of any act to be committed
to an industrial school or juvenile reformatory.” The BIA decided that the respondent’s
conviction was a crime involving moral turpitude because the record of conviction
showed that the respondent rendered a child statutorily delinquent because the child
engaged in sexual immorality or any similar form of vice. The BIA reasoned, however,
that the statute was broad and contained acts that did not involve moral turpitude.
Therefore, without this showing of sexual misconduct in the record, the BIA would not
have found the conviction to be one involving moral turpitude.
        The Virginia contributing to the delinquency of a minor statute and statutory
definition of “delinquent child” is similar to the provisions of the statute that the BIA
found not to involve moral turpitude in Matter of W. Both statutes punish a parent for
willfully contributing to the delinquency of a minor, and a delinquent minor is any child
who violates any law. The act of encouraging a minor to break any law, regardless of
how minor the criminal code violation, would be punishable under the statute.
        In another case also entitled Matter of W, 2 I&N Dec. 795 (BIA 1947), the BIA
held that the promotion of juvenile delinquency was not a crime involving moral
turpitude because the respondent in that case had merely set a bad example and did not
exercise his will by force or otherwise on the minors. This section of the Virginia statute
punishes a defendant for merely encouraging a minor to commit some delinquent act, and
does not punish a defendant for enticing or persuading a minor to commit some
delinquent act. See Bibbs v. Comm., 106 S.E. 363 (Va. 1921).
        Therefore, a conviction under this section of the statute is probably not a crime
involving moral turpitude. However, if the record of conviction reflects that the child’s
delinquent act was a crime involving moral turpitude, a conviction under this section of
the statute is probably a crime involving moral turpitude.

         (i) Rendering a child abused or neglected by infliction of injury
         A conviction under this section of the statute for willfully rendering a child
abused is a crime involving moral turpitude. “Abused or neglected” is defined by Va.
Code Ann. § 16.1-228(1), and an abused or neglected child means “any child whose
parents or other person responsible for his care creates or inflicts, threatens to create or
inflict, or allows to be created of inflicted upon such child a physical or mental injury by
other than accidental means, or creates a substantial risk of death, disfigurement or
impairment of bodily functions...”




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         The statute has a willful element, and the statute also requires that the parent
inflict physical injury or allow such physical injury to be inflicted upon the child. See
Matter of Nodahl, 12 I&N Dec. 338 (BIA 1967), aff’d, Nodahl v. INS, 407 F.2d 1405 (9th
Cir. 1969). In Nodahl, the BIA found the following statute to involve moral turpitude:
“any person who willfully inflicts upon any child any cruel or inhuman corporal
punishment or injury resulting in a traumatic cond ition is guilty of a felony.” The BIA
found that this offense was inherently base as to be a crime involving moral turpitude.
Because a conviction under this section of the Virginia statute for rendering a child
abused contains similar elements as the statute that the BIA found to be a crime involving
moral turpitude in Nodahl, a conviction under this section of the Virginia statute is a
crime involving moral turpitude.

       (i) Rendering a child abuse or neglected by failing to provide necessary care
       A conviction under this section of the statute for willfully rendering a child
neglected is probably a crime involving moral turpitude. “Abused or neglected” is
defined by Va. Code Ann. § 16.1-228(2), and an abused or neglected child means “…any
child whose parents or other person responsible for his care neglects or refuses to provide
care necessary for his health.”
       Because the child must be left without the care necessary for his health, a
conviction under this section of the statute is probably a crime involving moral turpitude,
because the act is done willfully and the child is left in destitute or necessitous
circumstances. See, e.g., Matter of R, 4 I&N Dec. 192 (BIA 1950); Matter of S, 2 I&N
Dec. 553 (BIA 1946).

        (i) Rendering a child abused or neglected by abandoning such child
        A conviction under this section of the statute for rendering a child abused or
neglected is probably a crime involving moral turpitude. To be convicted under this
section of the statute, the person responsible for the child’s care must abandon the child.
Va. Code Ann. § 16.1-228(3).
         This section of the statute punishes willful conduct, yet the statute does not
describe whether or not such abandonment must leave the child in destitute or necessitous
circumstances. See, e.g., Matter of R, 4 I&N Dec. 192 (BIA 1950); Matter of S, 2 I&N
Dec. 553 (BIA 1946). Because abandonment of a child usually leaves the child in
destitute or necessitous circumstances, a conviction under this section of the statute is
probably a crime involving moral turpitude.

         (i) Rendering a child abused or neglected by allowing sexual act to be committed
         upon such child
         A conviction under this section of the statute for rendering a child abused or
neglected is a crime involving moral turpitude. In order to be convicted under this
section of the statute, the person responsible for the child’s care must commit or allow to
be committed any sexual act upon the child in violation of law. Va. Code Ann. § 16.1-
228(4).
         Generally, sexual acts committed upon a child are crimes involving moral
turpitude. See, e.g., Matter of Garcia, 11 I&N Dec. 521 (BIA 1966) (taking indecent
liberties with a child is a crime involving moral turpitude). Even though the defendant



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under this statute can be convicted for allowing the act to be committed upon the child
and not committing the act him or herself, it is a crime involving moral turpitude. Aiding
and abetting offenses are part of the substantive offense for the purposes of determining
whether a crime involves moral turpitude. See, e.g., Matter of Short, 20 I&N Dec 136
(BIA 1989); Matter of Martinez, 16 I&N Dec. 336 (BIA 1977). Therefore, a conviction
under this section of the statute is a crime involving moral turpitude.

         (i) Rendering a child abused or neglected by unreasonable absence
         A conviction under this section of the statute for rendering a child abused or
neglected is probably not a crime involving moral turpitude. A conviction under this
section of the statute requires that the child be without parental care or guardianship
caused by the unreasonable absence or the mental or physical incapacity of the child’s
parent, guardian, legal custodian or other person standing in loco parentis. Va. Code
Ann. § 16.1-228(5).
          A conviction under this section is probably not a crime involving moral turpitude
because, although the statute punishes willful conduct, it does not require that the child be
left in destitute or necessitous circumstances. Moreover, if a person can be convicted
under this statute for willfully falling into mental or physical incapacity and therefore
being unable to care for a child, the failure to care for the child is not a willful act because
the defendant would not be capable of committing such a willful act. Therefore, a
conviction under this section of the statute is probably not a crime involving moral
turpitude because, although a conviction technically requires a willful act, the child need
not be left in destitute or necessitous circumstances. See Matter of R, 4 I&N Dec. 192
(BIA 1950); Matter of S, 2 I&N Dec. 553 (BIA 1946).

        (i) Rendering a child abused or neglected by knowingly leaving the child with an
        unrelated person whom the parent knows is a convicted sex offender
        A conviction under this section of the statute for rendering a child abused or
neglected is probably not a crime involving moral turpitude. A conviction under this
section of the statute punishes a parent or caretaker for knowingly leave the child with an
unrelated person whom the parent or caretaker knows is a convicted sex offender. Va.
Code Ann. § 16.1-288(6).
        A conviction under this section of the statute is probably not a crime involving
moral turpitude because, although the statute punishes willful conduct, it does not require
that the child be left in destitute or necessitous circumstances. See, e.g., Matter of R, 4
I&N Dec. 192 (BIA 1950); Matter of S, 2 I&N Dec. 553 (BIA 1946). Nor does the
statute require knowledge that the child will be subject to sexual abuse by the caretaker or
aiding and abetting in the sexual abuse of a child. See, e.g., Matter of Garcia, 11 I&N
Dec. 521 (BIA 1966); Matter of Short, 20 I&N Dec. 136 (BIA 1989). Rather, the acts
punished under this statute merely create a risk of sexual abuse to the child.

        (i) Rendering a child in need of services
        A conviction under this section of the statute for rendering a child in need of
services is probably a crime involving moral turpitude. The definition of a child in need
of services under this statute is: “(i) a child whose behavior, conduct or condition
presents or results in a serious threat to the well-being and physical safety of the child or



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(ii) a child under the age of 14 whose behavior, conduct or condition presents or results in
a serious threat to the well-being and physical safety of another person.” Va. Code Ann.
§ 16.1-228.
         The elements of a conviction for rendering a child in need of services under this
section of the statute is analogous to child neglect statutes found by the BIA to be crimes
involving moral turpitude. See, e.g., Matter of R, 4 I&N Dec. 192 (BIA 1950); Matter of
S, 2 I&N Dec. 553 (BIA 1946). Generally, a child neglect statute is a crime involving
moral turpitude if the offense requires willful conduct and the child is left in destitute or
necessitous circumstances. The Virginia statute punishing the rendering of a child in
need of services requires that the act be willful and that the child behave in such a way
that the child’s or another person’s life is seriously threatened. The child’s conduct must
present a clear and substantial danger to the child’s or another person’s life or health. See
Va. Code Ann. § 16.1-288. The statute therefore punishes behavior that leaves the child
in necessitous circumstances because the child’s life or another person’s life is seriously
threatened by the child’s actions. Moreover, this section of the statute punishes willful
conduct. Therefore, a conviction for rendering a child in need of services under this
section of the statute is probably a crime involving moral turpitude.

        (ii) Engaging in consensual sexual intercourse with a child
        A conviction under this section of the statute for engaging in consensual sexual
intercourse with a child 15 or older not his spouse, child or grandchild is a crime
involving moral turpitude. Statutory rape has generally been held to be a crime involving
moral turpitude, whether or not the victim consents to the sexual intercourse. See, e.g.,
Castle v. INS, 541 F.2d 1064 (4th Cir. 1976) (carnal knowledge of a 15-year old female
was a crime involving moral turpitude); Matter of P, 5 I&N Dec. 392 (carnal abuse of a
female child under the age of 16, even though she gives full consent, is a crime involving
moral turpitude); Matter of F, 2 I&N Dec. 610 (BIA 1946) (having sexual intercourse
with a 15-year old girl is a crime involving moral turpitude).

Aggravated felony
       (i) Rendering a child in need of supervision
       A defendant can be convicted under this statute for rendering a child “in need of
supervision,” which is defined as a child who, “while subject to compulsory school
attendance, is habitually and without justification absent from school.” Va. Code Ann. §§
18.2-371, 16.1-228. Such a crime would not amount to an aggravated felony because the
elements do not fit any of the aggravated felony definitions.

        (i) Rendering a child delinquent
        Contributing to the delinquency of a minor is possibly an aggravated felony. Va.
Code Ann. § 18.2-371 cites Va. Code Ann. § 16.1-228 for the definition of what is a
“delinquent child” for the offense of contributing to the delinquency of a minor. The
definition of “delinquent act” under Va. Code Ann. § 16.1-228 includes a violation of any
law. The provision of Va. Code Ann. §§ 18.2-371 and 16.1-228 punishing contributing
to the delinquency of a minor is a broad statute that encompasses acts that would not
qualify as aggravated felonies. Namely, if a parent does any act that encourages a child
to break any law, that parent can be convicted under the statute.



                                            206
         Crime of violence
         A conviction under this section of the statute is possibly a crime of violence under
18 U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if the
sentence imposed is at least one year. A defendant convicted under this statute may be
guilty of solicitation to commit a crime of violence if the minor commits a crime of
violence and the defendant is convicted for encouraging or causing the child to commit
such act.
         It is possible that solicitation to commit a crime of violence is not an aggravated
felony because Congress did not include in 8 U.S.C. § 1101(a)(43)(U). Rather, section
(U) of the aggravated felony definition includes attempts or conspiracies to commit a
substantive offense. The offense of solicitation has been analyzed by some courts in the
context of the ground of deportability of a crime relating to a controlled substance under
8 U.S.C. § 1227(a)(2)(B). The Ninth Circuit has held that a solicitation to commit a
controlled substance offense is not a conviction for the substantive offense. See Leyva-
Licea v. INS, 187 F.3d 1147 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322
(9th Cir. 1997). However, the BIA has held that solicitation to possess drugs is a crime
relating to a controlled substance. See Matter of Beltran, 20 I&N Dec. 521 (BIA 1992).
The BIA reasoned that solicitation was similar to the offense of attempt or conspiracy,
but the main difference with attempt or conspiracy is that the offeree does not accept the
offer when the crime is solicitation. The BIA reasoned that this offense is basically the
same as attempt or conspiracy and therefore is the substantive offense.
         Therefore, a conviction under this section of the statute for encouraging a child to
commit a crime of violence is likely to be a crime of violence under 8 U.S.C. §§
1101(a)(43)(F) and (U).
         Sexual abuse of a minor
         A conviction under this section of the statute is not necessarily a sexual abuse of a
minor offense under 8 U.S.C. § 1101(a)(43)(A). However, should the offense that
rendered the child delinquent be a sexual offense, a conviction under this section of the
statute is probably an aggravated felony under sexual abuse of a minor. The BIA has
held that a criminal offense is an offense relating to sexual abuse of a minor under 8
U.S.C. § 101(a)(43)(A) even if there is no touching of the child required under the
statute. See Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) (holding that
indecency with a child by exposure is an aggravated felony as a sexual abuse of a minor
offense under 8 U.S.C. § (a)(43)(A)); see also U.S. v. Izaguirre-Flores, 405 F.3d 270 (5th
Cir. 2005) (holding that a statute punishing indecent liberties with a child was a
conviction for an aggravated felony as sexual abuse of a minor).

         (i) Rendering a child abused
         A conviction under this section of the statute for willfully rendering a child
abused is not necessarily a crime of violence under 18 U.S.C. § 16 and therefore an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if the sentence imposed is at least one
year. “Abused or neglected” is defined by Va. Code Ann. § 16.1-228(1), and an abused
child means “any child whose parents or other person responsible for his care creates or
inflicts, threatens to create or inflict, or allows to be created of inflicted upon such child a
physical or mental injury by other than accidental means, or creates a substantial risk of
death, disfigurement or impairment of bodily functions...”



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                Rendering a child abused by omission that causes physical injury
                Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if the
sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The statute does not have as
an element the use, attempted use, or threatened use of physical force against the person
or property of another. Rather, the statute punishes a defendant for willfully contributing
to, encouraging, or causing any act, omission or condition that renders a child abused
under the statutory definition. This statutory definition does not include an element of
the actual use, attempted use, or threatened use of physical force. See, e.g., U.S. v.
Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) (conviction of injury to a child, which
involves causing a child to suffer bodily injury or mental impairment by omission or act,
is not a crime of violence under 18 U.S.C. § 16(a)); see also U.S. v. Lopez-Patino, 391
F.3d 1034 (9th Cir. 2004) (statute punishing causing a child to suffer abuse or physical
injury or permitting child to be placed in a situation where health is endangered is not a
crime of violence because person could cause injury without the use of force).

                Rendering a child abused by inflicting or threatening to inflict physical
                injury
                Crime of violence
        A conviction under this section of the statute is a crime of violence under 18
U.S.C. § 16 and therefore is an aggravated fe lony under 8 U.S.C. § 1101(a)(43)(F) if the
sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The statute punishes a
defendant for inflicting or threatening to inflect upon a child a physical or mental injury
by other than accidental means. To be convicted, a defendant must willfully and
affirmatively do an act that causes, inflicts, or threatens to inflict physical or mental
injury. The intentional infliction of physical injury is likely to be a crime of violence
under 18 U.S.C. § 16(a) because the statute punishes intentionally causing physical
injury. See Matter of Martin, 23 I&N Dec. 491 (BIA 2002); but see Chrzanoski v.
Ashcroft, 327 F.3d 188 (2d Cir. 2002) (holding that intentional infliction of physical
injury is not a crime of violence where the statute does not indicate that the causation of
physical injury was through the use of force).
        However, the BIA’s decision in Matter of Martin has been undermined by the
Supreme Court’s 2004 decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the
Court held that when an element of a statute was causation of injury, that did not
automatically mean that the statute had as an element the use, attempted use, or
threatened use of physical force to cause such injury. However, the Leocal holding is not
exactly on point because the statute interpreted in Leocal had no mens rea. Therefore,
because Martin has not been overruled and is the only BIA precedent on point, it is likely
that a conviction under this section of the Virginia statue is a crime of violence under 18
U.S.C. § 16.




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                 Rendering a child abused by inflicting or threatening to inflict mental
                 injury
                 Crime of violence
         A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The intentional infliction of
mental injury is not likely to be a crime of violence under 18 U.S.C. § 16(a) as the
infliction or threatened infliction of physical injury. It is not likely that mental injury is
caused by the use of force, since the use of force would normally cause physical injury.
The fact that mental injury has been caused is not likely evidence of the use or threatened
use of physical force. Therefore, an infliction or threatened infliction of mental injury is
not a crime of violence under 18 U.S.C. § 16(a).

                 Rendering a child abused by encouraging another to inflict injury
                 Crime of violence
         A conviction under this section of the statute is probably a crime of violence
under 18 U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. §§
1101(a)(43)(F) and (U) if the sentence imposed is at least one year. This section of the
statute includes liability for solicitation to inflict physical or mental injury, which
Congress did not include in 8 U.S.C. § 1101(a)(43)(U). Rather, section (U) of the
aggravated felony definition includes attempts or conspiracies to commit a substantive
offense. The offense of solicitation has been analyzed by some courts in the context of
the ground of deportability of a crime relating to a controlled substance under 8 U.S.C. §
1227(a)(2)(B). The Ninth Circuit has held that a solicitation to commit a controlled
substance offense is not a conviction for the substantive offense. See Leyva-Licea v. INS,
187 F.3d 1147 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).
However, the BIA has held that solicitation to posses drugs is a crime relating to a
controlled substance. See Matter of Beltran, 20 I&N Dec. 521 (BIA 1992). The BIA
reasoned that solicitation was similar to the offense of attempt or conspiracy, but the
main difference with attempt or conspiracy is that the offeree does not accept the offer
when the crime is solicitation. The BIA reasoned that this offense is basically the same
as attempt or conspiracy and therefore is the substantive offense.
         It is more likely that solicitation was not listed in 8 U.S.C. § 1101(a)(43)(U)
because Congress presumed that this offense was part of the substantive offense, since in
other areas of immigration law the substantive offense encompasses aiding and abetting.
See, e.g., Matter of Short, 20 I&N Dec 136 (BIA 1989); Matter of Martinez, 16 I&N Dec.
336 (BIA 1977). Therefore, a conviction for solicitation to inflict injury is probably also
an aggravated felony under the analysis above; a solicitation to inflict mental injury is
probably not an aggravated felony.

       (i) Rendering a child abused or neglected by failing to provide necessary care
       A conviction under this statute for willfully rendering a child neglected is not an
aggravated felony. “Abused or neglected” is defined by Va. Code Ann. § 16.1-228, and a
neglected child means “…any child whose parents or other person responsible for his
care neglects or refuses to provide care necessary for his health.”



                                             209
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The statute does not contain
as an element the use, attempted use, or threatened use of physical force against the
person or property of another. Rather, the statute punishes a defendant for willfully
contributing to, encouraging, or causing any act, omission or condition that renders a
child neglected under the statutory definition. A defendant can be convicted for
encouraging another person to neglect a child, or for failing to act and therefore causing a
child to be neglected. This statutory definition does not include an element of the actual
use, attempted use, or threatened use of physical force. See, e.g., U.S. v. Gracia-Cantu,
302 F.3d 308 (5th Cir. 2002) (conviction of injury to a child, which involves causing a
child to suffer bodily injury or mental impairment by omission or act, is not a crime of
violence under 18 U.S.C. § 16(a)); U.S. v. Lopez-Patino, 391 F.3d 1034 (9th Cir. 2004)
(statute punishing causing a child to suffer abuse or physical injury or permitting child to
be placed in a situation where health is endangered is not a crime of violence because
person could cause injury without the use of force).

        (i) Rendering a child abused or neglected by abandoning such child
        A conviction under this section of the statute is not an aggravated felony. A
conviction under Va. Code Ann. § 371 for rendering a child abused or neglected requires
that the person responsible for the child’s care to abandon the child. Va. Code Ann. §
16.1-228(3).
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. A conviction under this statute
is not a crime of violence under 18 U.S.C. § 16(a) because this statutory definition does
not include an element of the actual use, attempted use, or threatened use of physical
force. See, e.g., U.S. v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) (conviction of injury
to a child which involves causing a child to suffer bodily injury or mental impairment by
omission or act is not a crime of violence under 18 U.S.C. § 16(a)); U.S. v. Lopez-Patino,
391 F.3d 1034 (9th Cir. 2004) (statute punishing causing a child to suffer abuse or
physical injury or permitting child to be placed in a situation where health is endangered
is not a crime of violence because person could cause injury without the use of force).

        (i) Rendering a child abused or neglected by allowing sexual act to be committed
        upon such child
        A conviction under this section of the statute is an aggravated felony. A
conviction under this section of Va. Code Ann. § 371 for rendering a child abused or
neglected requires that the person responsible for the child’s care commits or allows to be
committed any sexual act upon the child in violation of law. Va. Code Ann. § 16.1-
228(4).




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        Sexual abuse of a minor
        A conviction under this section of the statute is an aggravated felony under 8
U.S.C. § 1101(a)(43)(A) as a sexual abuse or a minor. Sexual acts upon a child, even if
they do not involve touching, have been held to be sexual abuse of a minor offenses and
therefore aggravated felonies under 8 U.S.C. § 1101(a)(43)(A). See Matter of Rodriguez-
Rodriguez, 22 I&N Dec. 991 (BIA 1999).

                By encouraging another to commit sexual act
                Sexual abuse of a minor
        A conviction for encouraging another to commit a sexual act upon a child is
probably an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(A) and (U). This section
of the statute punishes solicitation to commit a sexual act upon a child, which Congress
did not include in 8 U.S.C. § 1101(a)(43)(U). Rather, section (U) of the aggravated
felony definition includes attempts or conspiracies to commit a substantive offense. The
offense of solicitation has been analyzed by some courts in the context of the ground of
deportability of a crime relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B).
The Ninth Circuit has held that a solicitation to commit a controlled substance offense is
not a conviction for the substantive offense. See Leyva-Licea v. INS, 187 F.3d 1147 (9th
Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997). However, the BIA
has held that solicitation to possess drugs is a crime relating to a controlled substance.
See Matter of Beltran, 20 I&N Dec. 521 (BIA 1992). The BIA reasoned that solicitation
was similar to the offense of attempt or conspiracy, but the main difference with attempt
or conspiracy is that the offeree does not accept the offer when the crime is solicitation.
The BIA reasoned that this offense is basically the same as attempt or conspiracy and
therefore is the substantive offense.
        It is more likely that solicitation was not listed in 8 U.S.C. § 1101(a)(43)(U)
because Congress presumed that this offense was part of the substantive offense, since in
other areas of immigration law the substantive offense encompasses aiding and abetting.
See, e.g., Matter of Short, 20 I&N Dec 136 (BIA 1989); Matter of Martinez, 16 I&N Dec.
336 (BIA 1977). Therefore, a conviction for solicitation to commit a sexual act upon a
child is probably an aggravated felony under the analysis above.

        (i) Rendering a child abused or neglected by unreasonable absence
        A conviction under this section of the statute is not an aggravated felony. A
conviction under Va. Code Ann. § 371 for rendering a child abused or neglected requires
that the child be without parental care or guardianship caused by the unreasonable
absence or the mental or physical incapacity of the child’s parent, guardian, legal
custodian or other person standing in loco parentis. Va. Code Ann. § 16.1-228(5).
        Crime of violence
         A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. A conviction under this statute
is not a crime of violence under 18 U.S.C. § 16(a) because this statutory definition does
not include an element of the actual use, attempted use, or threatened use of physical
force. The mere abandonment of a child does not have as an element the use, attempted



                                            211
use, or threatened use of physical force against the child. Cf. U.S. v. Gracia-Cantu, 302
F.3d 308 (5th Cir. 2002) (conviction of injury to a child, which involves causing a child
to suffer bodily injury or mental impairment by omission or act, is not a crime of violence
under 18 U.S.C. § 16(a)); U.S. v. Lopez-Patino, 391 F.3d 1034 (9th Cir. 2004) (statute
punishing causing a child to suffer abuse or physical injury or permitting child to be
placed in a situation where health is endangered is not a crime of violence because person
could cause injury without the use of force).

         (i) Rendering a child abused or neglected by knowingly leaving the child with an
         unrelated person whom the parent knows is a convicted sex offender
         A conviction under this section of the statute is not an aggravated felony. A
conviction under this section of the statute punishes a parent or caretaker for knowingly
leave the child with an unrelated person whom the parent or caretaker knows is a
convicted sex offender. Va. Code Ann. § 16.1-288(6).
         Crime of violence
         A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. A conviction under this statute
is not a crime of violence under 18 U.S.C. § 16(a) because this statutory definition does
not include an element of the actual use, attempted use, or threatened use of physical
force. Leaving a child in the care of someone who may abuse the child does not have as
an element the use, attempted use, or threatened use of physical force against the child.
Cf. U.S. v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) (conviction of injury to a child,
which involves causing a child to suffer bodily injury or mental impairment by omission
or act, is not a crime of violence under 18 U.S.C. § 16(a)); U.S. v. Lopez-Patino, 391 F.3d
1034 (9th Cir. 2004) (statute punishing causing a child to suffer abuse or physical injury
or permitting child to be placed in a situation where health is endangered is not a crime of
violence because person could cause injury without the use of force).
         Sexual abuse of a minor
         A conviction under this section of the statue is not a sexual abuse of a minor
offense and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). This
offense does not require that the defendant commit any sexual abuse of a child or allow
such acts to be committed upon a child. Rather, the offense punishes a defendant for
creating that risk to the child. The statute punishes behavior that is too attenuated from
actual sexual abuse of the minor and therefore a conviction under the statute is not an
aggravated felony.

        (i) Rendering a child in need of services
        A conviction under this section of the statute is not an aggravated felony. A
conviction under Va. Code Ann. § 18.2-371 for willfully rendering a child in need of
services is probably not an aggravated felony. “Child in need of services” is defined by
Va. Code Ann. § 16.1-228, and a child in need of services means “a child whose
behavior, conduct or condition presents or results in a serious threat to the well-being and
safety of the child or a child under the age of 14 whose behavior, conduct or condition
presents or results in a serious threat to the well-being and physical safety of another



                                            212
person…to find that a child falls within these provisions, the conduct complained of must
present a clear and substantial danger to the child’s life or health or to the life or health of
another person, the child or his family is in need of treatment, rehabilitation or services
not presently being received, and the intervention of the court is essential to provide the
treatment, rehabilitation or services needed by the child or his family.”
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The statute does not contain
as an element the use, attempted use, or threatened use of physical force against the
person or property of another as required by 18 U.S.C. § 16(a). Rather, the statute
punishes a defendant for willfully contributing to, encouraging, or causing any act,
omission or condition that renders a child in need of services under the statutory
definition. A defendant can be convicted for encouraging another person to render a
child in need of services, or for failing to act and therefore causing a child to be in need
of services. This statutory definition does not include an element of the actual use,
attempted use, or threatened use of physical force. See, e.g., U.S. v. Gracia-Cantu, 302
F.3d 308 (5th Cir. 2002) (conviction of injury to a child, which involves causing a child
to suffer bodily injury or mental impairment by omission or act, is not a crime of violence
under 18 U.S.C. § 16(a)); U.S. v. Lopez-Patino, 391 F.3d 1034 (9th Cir. 2004) (statute
punishing causing a child to suffer abuse or physical injury or permitting child to be
placed in a situation where health is endangered is not a crime of violence because person
could cause injury without the use of force).

        (ii) Engaging in consensual sexual intercourse with a child
        Sexual abuse of a minor
        A conviction under Va. Code Ann. § 18.2-371(ii) for engaging in consensual
sexual intercourse with a child 15 or older not his spouse, child or grandchild is an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A) (sexual abuse of a minor). Statutory
rape has been held to be an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) as a
sexual abuse of a minor offense. See, e.g., Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir.
2001); U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001) (holding that the court
should use a common sense definition of minor when interpreting 8 U.S.C. §
1101(a)(43)(A), which normally involves a child who is under 18 years of age).

Other immigration consequences
       A conviction under most subsections of this statute will render a non-citizen
deportable for a crime of child abuse, child neglect, or child abandonment under 8 U.S.C.
§ 1227(a)(2)(E)(i). However, it is possible that a defendant is not deportable under this
ground if convicted for rendering a child in need of supervision, rendering a child
delinquent, or for leaving the child with a known sex offender.




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18.2-371.1 Abuse or neglect of children

Elements
(A)
        - parent or guardian or person responsible for child
        - willful act or omission or refusal to provide any necessary care for child’s
          health
        - causes or permits serious injury to life or health of child – serious injury =
    (i)   disfigurement, (ii) fracture, (iii) severe burn or laceration, (iv) mutilation, (v)
          maiming, (vi) forced ingestion of dangerous substances, or (vii) life-
          threatening internal injuries
(B)
        - parent or guardian or person responsible for child
        - willful act or omission or refusal to provide any necessary care for child’s
          health is so gross, wanton, and culpable as to show a reckless disregard for
          human life

Crime involving moral turpitude
            (A) Willful act, omission, or refusal to provide assistance that causes or
            permits serious injury
        A conviction under this section of the statute is a crime involving moral turpitude.
The BIA has held in several cases that the offense for child abandonment is a crime
involving moral turpitude if the act is done willfully and the child is left in destitute or
necessitous circumstances. See, e.g., Matter of R, 4 I&N Dec. 192 (BIA 1950); Matter of
S, 2 I&N Dec. 553 (BIA 1946). The BIA has distinguished these offenses from the
offense for mere nonsupport where the child is not left in destitute or necessitous
circumstances, which is not a crime involving moral turpitude.
        A conviction under this section of the statute involves a willful commission of the
neglect or abandonment of the child. Also, the child is left in destitute or necessitous
circumstances because the child suffers serious injury as a result of the abuse or neglect.
Therefore, the statute is likely to be interpreted as a crime involving moral turpitude as
the statutes interpreted by the BIA in Matter of R and Matter of S. Id.; see also In re
Adcock, 12 Immigr. Rptr. B1-175 (BIA Feb. 4, 1994) (unpublished) (holding that a
conviction under Va. Code Ann. § 18.2-371.1(A) was a crime involving moral turpitude
because the intent element is willful and the resulting injury is death or serious injury to a
child’s health).

         (B) Reckless act without bodily injury
         A conviction under this section of this statute is not a crime involving moral
turpitude. A conviction under this section of the statute does not require that the child be
left in destitute or necessitous circumstances. See Matter of R, 4 I&N Dec. 192 (BIA
1950); Matter of S, 2 I&N Dec. 553 (BIA 1946). The statute does not require that
anything happen to the child; it only requires that the parent or guardian act with reckless
disregard for human life.
         Generally, offenses where the mens rea is recklessness are only crimes involving
moral turpitude if there is also causation of serious bodily injury. See Matter of Fualaau,



                                             214
21 I&N Dec. 475 (BIA 1996). A conviction under this section of the statute has a mens
rea of recklessness because the defendant must do a willful act or omission in the care of
the child that is so gross, wanton and culpable as to show a reckless disregard for human
life. However, a conviction under this statute does not require the showing of causation
of serious bodily injury. Therefore, a conviction under this section of the statute is not a
crime involving moral turpitude.

Aggravated felony
        (A) Willful omission or refusal to provide care which causes serious injury
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year.
        The offense is not a crime of violence under 18 U.S.C. § 16(a) because there is no
element of the use, attempted use, or threatened use of physical force against the person
or property of another. Rather, the offense involves the refusal to act or an omission.
The Supreme Court has interpreted the crime of violence to include some sort of active
violence. See Leocal v. Ashcroft, 543 U.S. 1 (2004). In addition, the BIA and the Fifth
Circuit have held that an omission that results in risk of serious injury or death is not a
crime of violence. U.S. v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002); Matter of
Sweetser, 22 I&N Dec. 709 (BIA 1999).
        Even though the mens rea of the offense is willful, which may rise to the level of
intentional conduct, intentional conduct cannot amount to a crime of violence under 18
U.S.C. § 16(a) unless it also contains as an element the use, attempted use, or threatened
use of physical force against the person or property of another.
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16(b) because the offense is not one which, by its nature, involves a substantial
risk that force will be used against person or property of another. Rather, there is a risk
that injury will result from the conduct punishable under the statute. The Supreme Court
in Leocal affirmed that section 16(b) punishes conduct which presents a risk of use of
force, not conduct which presents a risk of resulting physical injury. The Fourth Circuit
reaffirmed this principle in Bejarano-Urrutia v. Ashcroft, 413 F.3d 444 (4th Cir. 2005).
Therefore, a conviction under this section of the statute is not a crime of violence.

         (A) Willful act that causes serious injury
         Crime of violence – 18 U.S.C. § 16(a)
         A conviction under this section of the statute is probably a crime of violence
under 18 U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)
if the sentence imposed is at least one year. Unlike the omission that causes injury, this
section of the statute requires an affirmative act that causes serious injury. In Matter of
Martin, 23 I&N Dec. 491 (BIA 2002), the BIA held that an assault statute punishing the
intentional causation of bodily injury was a crime of violence under 18 U.S.C. § 16(a).
The BIA read in the “use of force” element, even though the statute did not contain one.
The BIA reasoned that it could infer the use of force when someone intentionally causes
injury. See id.; but see Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (interpreting
the same statute and finding that it was not a crime of violence under 18 U.S.C. § 16(a)



                                             215
because the means of causing injury is not in the statute so it could not infer that the
defendant used force to cause such injury).
         The Virginia courts have interpreted the mens rea of “willful” as denoting an act
which is intentional, or knowing, or voluntary, as distinguished from accidental. Collado
v. Comm., 533 S.E.2d 625 (Va. Ct. App. 2000); Ellis v. Comm., 513 S.E.2d 453 (Va. Ct.
App. 1999). Therefore, the Virginia statute has similar elements to the statute interpreted
by the BIA in Matter of Martin because the Virginia statute also has the elements of
intentionally causing bodily injury.
         The BIA’s decision in Matter of Martin has been undermined by the Supreme
Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the Court held that
when an element of a statute was causation of injury, that did not automatically mean that
the statute had as an element the use, attempted use, or threatened use of physical force to
cause such injury. However, the Leocal holding is not exactly on point because the
statute interpreted in Leocal had no mens rea.
         Therefore, because Matter of Martin has not been expressly overruled, a
conviction under this statute is probably a crime of violence under 18 U.S.C. § 16(a).
         Crime of violence - 18 U.S.C. § 16(b)
         A conviction under this portion of this section of the statute is probably a crime of
violence under 18 U.S.C. § 16(b). The BIA has held that a manslaughter statute that
punishes the intent to cause bodily injury and the actual causation of death is a crime of
violence under 18 U.S.C. §16(b) and therefore an aggravated felony under 8 U.S.C. §
1101(a)(43)(F). See Matter of Vargas-Sarmiento, 23 I&N Dec. 651 (BIA 2004). The
Second Circuit has upheld the BIA’s decision and reasoned that the New York
manslaughter statute interpreted by the BIA, which punished the causation of serious
injury or death while intending to cause death or serious injury, was a crime of violence
under 18 U.S.C. § 16(b). Vargas-Sarmiento v. U.S.D.O.J., 448 F.3d 159 (2d Cir. 2006).
The Second Circuit reasoned that even though such an offense would not necessarily be a
crime of violence under 18 U.S.C. § 16(a) pursuant to its reasoning in Chrzanoski v.
Ashcroft, 327 F.3d 188 (3d Cir. 2003), it would be a crime of violence under 18 U.S.C. §
16(b) because the focus of 18 U.S.C. § 16(b) is the nature of the offense and not only the
elements of the offense. By this reasoning, a conviction under this section of the Virginia
statute is probably crime of violence under 18 U.S.C. § 16(b).

        (B) Reckless omission or refusal to act
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. This offense is not a crime of violence under
18 U.S.C. § 16(a) or (b) because there is no act required; the defendant may be punished
for an omission or failure to act. See analysis for Va. Code Ann. § 18.2-371.1(A) (willful
omission that causes bodily injury).
        In addition , the mens rea of the statute is recklessness, not intentional conduct.
Therefore, it cannot meet the crime of violence definition under 18 U.S.C. § 16(a) as
interpreted by the BIA in Matter of Martin, 23 I&N Dec. 491 (BIA 2002), which held
that for an offense to be a crime of violence under 18 U.S.C. § 16(a), there must be
intentional conduct that results in bodily injury. This section of the statute requires



                                             216
neither an intentional act nor causation of bodily injury and therefore is not a crime of
violence under 18 U.S.C. § 16(a).
        A conviction under this section of the statute is also not a crime of violence under
18 U.S.C. § 16(b). The Fourth Circuit has held that an involuntary manslaughter which
had a mens rea of recklessness was not a crime of violence under 18 U.S.C. § 16(b). See
Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. 2005); see also Garcia v.
Gonzales, 455 F.3d 465 (4th Cir. 2006) (holding that recklesly causing serious injury
with a dangerous weapon was not a crime of violence under 18 U.S.C. § 16(b)).

        (B) Reckless act
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year.
        A conviction under this section of the statute is also not a crime of violence under
18 U.S.C. § 16(b) because the mens rea of the statute is recklessness. The Fourth Circuit
has held that an involuntary manslaughter which had a mens rea of recklessness was not
a crime of violence under 18 U.S.C. § 16(b). See Bejarano-Urrutia v. Gonzales, 413
F.3d 444 (4th Cir. 2005); see also Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006).
Therefore, a conviction under this section of the Virginia statute is not a crime of
violence under 18 U.S.C. § 16(b).

Other immigration consequences
       A conviction under this statute is a conviction for a crime related to child abuse,
abandonment or neglect that will render a non-citizen deportable under 8 U.S.C. §
1227(a)(2)(E).

18.2-374 Production, publication, sale, possession, etc., of obscene items

Elements
           (1) knowingly prepare any obscene item for the purposes of sale or
               distribution
           (2) print, copy, manufacture, produce, or reproduce any obscene item for
               purposes of sale or distribution
           (3) publish, sell, rent, lend, transport in interstate commerce, distribute or
               exhibit any obscene item, or offer to do any of these things
           (4) have in possession with intent to sell, rent, lend, transport, or distribute
               any obscene items – possession in public or in a public place of any
               obscene item is prima facia evidence of violation of this section

Crime involving moral turpitude
        A conviction under this statute is probably not a crime involving moral turpitude
because the statute does not punish lewd or lascivious acts. Generally, statutes that
punish lewd or lascivious acts are crimes involving moral turpitude. However, this
statute does not punish such an act, but rather punishes the transfer of materials depicting




                                             217
such acts. See, e.g., Matter of P, 8 I&N Dec. 424 (BIA 1959); Matter of C, 3 I&N Dec.
790 (BIA 1949).
        Also, the BIA has held that sending obscene letters through the mail is not a crime
involving moral turpitude. See Matter of D, 1 I&N Dec. 190 (BIA 1942). The BIA
reasoned that although the statute punished the mailing of a letter suggesting fornication,
the underlying offense of fornication was not a crime involving moral turpitude and
therefore, the sending of such material was not a crime involving moral turpitude. The
Virginia offense is similar to the offense interpreted by the BIA in Matter of D because it
prohibits offenses relating sharing obscene materials. The Virginia statute has as an
element the requirement that the defendant knowingly do such acts, which indicates that
the defendant must act intentionally. However, in order for an offense to be a crime
involving moral turpitude, the crime requires the guilty mind plus an offense that
involves moral turpitude. Therefore, a conviction under this statute is probably not a
crime involving moral turpitude.

Aggravated felony
        Pornography
        A conviction under this statut e is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(I) because all of the offenses described in this section of the aggravated
felony definition deal with child pornography. See 18 U.S.C. § 2252, listed in 8 U.S.C. §
1101(a)(43)(I) (punishing transporting, receiving, distributing, selling, possessing with
intent to sell, or possessing child pornography). This Virginia statute makes no reference
to child pornography. Therefore, it is probably not an aggravated felony. However, if
the facts indicate that the offense involves child pornography, it is possibly an aggravated
felony. Cf. Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) (holding that a conviction for
sexual assault was a sexual abuse of a minor offense because the court determined the
age of the victim); Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007) (no need to
consult record of conviction for factual element of deportation ground); but cf. Singh v.
Ashcroft, 383 F.3d 144 (3d Cir. 2004) (conviction under unlawful sexual contact statute
that contained no element of the involvement of a child was not a sexual abuse of a minor
aggravated felony because under the categorical approach the offense was not a sexual
abuse of a minor offense).

18.2-374.1 Production, publication, sale, possession with intent to distribute,
financing, etc., of sexually explicit items involving children

Elements
(B) class 5 felony
    1)
        - accosts, entices or solicits a person younger than 18
        - with intent to induce or force such person to perform in or be a subject of
            sexually explicit visual material; OR
    2)
        - produces or makes or attempts or prepares to produce or make
        - sexually explicit visual material which utilizes or has as a subject a younger
            than 18; OR



                                            218
   3)
        -   knowingly takes part in or participates in the filming, photographing or other
            reproduction of sexually explicit visual material by any means, including but
            not limited to computer-generated reproduction
        -   which utilizes or has as a subject a person younger than 18; OR
   4)
        -   sells, gives away, distributes, electronically transmits, displays with lascivious
            intent, purchases, or possesses with intent to sell, give away, distribute,
            transmit or display with lascivious intent
        - sexually explicit visual material which utilizes or has as a subject a person
            younger than 18
(C) class 4 felony
        - knowingly finances or attempts or prepares to finance
        - sexually explicit visual material which utilizes or has as a subject a person
            younger than 18

For the purposes of this article, the term “sexually explicit visual material” means a
picture, photograph, drawing, sculpture, motion picture film, digital image or similar
visual representation which depicts sexual bestiality, a lewd exhibition of nudity, or
sexual excitement, sexual conduct or sadomasochistic abuse, or a book, magazine or
pamphlet which contains such a visual representation. An undeveloped photograph or
similar visual material may be sexually explicit material notwithstanding that processing
or other acts may be required to make its sexually explicit content apparent. Va. Code
Ann. § 18.2-374.1(A).

Crime involving moral turpitude
         This offense is probably a crime involving moral turpitude because most sexual
offenses against children are crimes involving moral turpitude. See, e.g, Matter of Imber,
16 I&N Dec. 256 (BIA 1977) (sexual misconduct with minor is a crime involving moral
turpitude); Matter of Garcia, 11 I&N Dec. 521 (BIA 1966). Even though this statute
punishes offenses that are remote from the actual sexual contact with the child, such as
selling or distributing child pornography, it is likely that all offenses punished under this
statute are crimes involving moral turpitude. In Matter of D, 1 I&N Dec. 190 (BIA
1942), the BIA held that mailing of an obscene letter was not a crime involving moral
turpitude because the letter suggested fornication, which was not a crime involving moral
turpitude. By that reasoning, this offense is a crime involving moral turpitude because
any acts of fornication with children are crime involving moral turpitude. Therefore, the
distribution of such material is probably a crime involving moral turpitude.
         This statute also punishes aiding and abetting, because section (C) punishes the
financing of the production of child pornography. Generally, aiding and abetting
offenses are part of the substantive offense for the purposes of determining whether a
crime involves moral turpitude. See, e.g., Matter of Short, 20 I&N Dec 136 (BIA 1989);
Matter of Martinez, 16 I&N Dec. 336 (BIA 1977). Therefore, any conviction under this
statute is probably a crime involving moral turpitude.




                                             219
Aggravated felony
        (B)(1) Soliciting minor for child pornography
        Pornography
        A conviction under section (B)(1) is an aggravated felony under 8 U.S.C. §
1101(a)(43)(I) because the elements of the offense are the same as 18 U.S.C. § 2251(a),
which is described in the aggravated felony definition. The Virginia offense, like the
federal offense, punishes enticing or soliciting a minor to be the subject of some sexually
explicit performance.

       (B)(2) and (3) Production and assisting in the production of child pornography
       Pornography
       A conviction under either section (B)(2) or (3) is an aggravated felony under 8
U.S.C. § 1101(a)(43)(I) because the elements of the offense are the similar to 18 U.S.C. §
2251(a), which punishes the use of a minor in any sexually explicit conduct for the
purpose of producing any visual depiction thereof. The Virginia statutes punishes the
production of such materials or the participation in such production.

        (B)(4) Distribution of child pornography
        Pornography
        A conviction under section (B)(4) is an aggravated felony under 8 U.S.C. §
1101(a)(43)(I) because the elements of the offense are the same as 18 U.S.C. § 2252(a),
which punishes the sale, distribution or possession of such materials. The Virginia
statute punishes the sale, distribution or other transmission of such materials.

       (C) Financing child pornography
       Pornography
       A conviction under section (C) is an aggravated felony under 8 U.S.C. §
1101(a)(43)(I) because the elements of the offense are the similar to 18 U.S.C. § 2251(a),
which punishes the use of a minor in any sexually explicit conduct for the purpose of
producing any visual depiction thereof. This section of the statute punishes the financing
or preparing to finance such creation of sexually explicit material involving children,
which is similar to aiding and abetting in the commission of the substantive offense. A
conviction for aiding and abetting an aggravated felony is an aggravated felony. See
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007).

18.2-374.1:1(A) Possession of child pornography

Elements
      - knowingly possess
      - any sexually explicit visual material
      - utilizing or having as a subject a person younger than 18

Crime involving moral turpitude
       A conviction under this statute is probably a crime involving moral turpitude.
Although there are no specific cases on possession of child pornography, most sexual



                                            220
offenses against children are crimes involving moral turpitude. See, e.g, Matter of Imber,
16 I&N Dec. 256 (BIA 1977) (sexual misconduct with minor is a crime involving moral
turpitude); Matter of Garcia, 11 I&N Dec. 521 (BIA 1966). Even though this statute
punishes offenses that are remote from the actual sexual contact with the child, such as
mere possession of such material, the offense is probably a crime involving moral
turpitude. In Matter of D, 1 I&N Dec. 190 (BIA 1942), the BIA held that mailing of an
obscene letter was not a crime involving moral turpitude because the letter suggested
fornication, which was not a crime involving moral turpitude. By that reasoning, this
Virginia offense is probably a crime involving moral turpitude because any acts of
fornication with children are crimes involving moral turpitude. Therefore, the possession
of such material is probably a crime involving moral turpitude.

Aggravated felony
         Pornography
         A conviction under this section is an aggravated felony under 8 U.S.C. §
1101(a)(43)(I) (statutes punishing activities relating to child pornography). Possession of
child pornography is punished under 18 U.S.C. § 2252(a)(4)(B), which punishes the
knowing possession of one or more books, magazines, periodicals, films, video tapes or
other matter that contain any visual depiction that has been sent over interstate
commerce. Even though the Virginia statute does not contain the element that the goods
be sent over interstate commerce, that is merely a jurisdictional hook for the federal
statute; otherwise the statute contains the same elements as the federal statute. See
generally Matter of Vasquez-Muniz, 23 I&N Dec. 1415 (BIA 2000) (the BIA examines
the substantive elements of an offense to determine whether a state offense fits the federal
offense and therefore is an aggravated felony without reference to the jurisdictional
element of the federal offense).
         Sexual abuse of a minor
         A conviction under this statute is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(A). The statute does not punish any type of conduct with a minor; rather, the
statute punishes the possession of materials involving minors. Therefore, it is not a
sexual abuse of a minor offense.

18.2-387 Indecent exposure

Elements
      -    intentionally
      -    makes obscene display or exposure of his person, or the private parts thereof
      -    in any public place or in any other place where others are present
      -    or procures another to so expose himself

Crime involving moral turpitude
        A conviction under this statute is probably a crime involving moral turpitude
because the defendant must act intentionally to be convicted under this statute. The BIA
interpreted an indecent exposure statute in Matter of H, 7 I&N Dec. 301 (BIA 1956). In
Matter of H, the statute under which the respondent was convicted punished knowingly
making any open or indecent exposure of his or her own person or of the person of



                                            221
another. Someone could be convicted under the language of the statute for acting
through negligent disregard of the presence of others and the exposure was occasioned by
physical necessity. Because there was no evil intent in the statute, it was not a crime
involving moral turpitude. See id.; see also Matter of Mueller, 11 I&N Dec. 268 (BIA
1965) (holding that publicly and indecently exposing a sex organ was not a crime
involving moral turpitude because there was no intent element).
         The Virginia Court of Appeals has found that a conviction under this statute is not
a crime involving moral turpitude for the purposes of using a prior conviction under this
statute to impeach a witness. See Chrisman v. Comm., 348 S.E.2d 399 (Va. Ct. App.
1986). However, this decision is not binding on an immigration court determining
whether this statute is a crime involving moral turpitude. Thus, because of the intentional
requirement of the statute, a conviction under this statute is probably a crime involving
moral turpitude.

Aggravated felony
        Sexual abuse of a minor
        A conviction under this statute is not necessarily a sexual abuse of a minor
offense under 8 U.S.C. § 1101(a)(43)(A). However, if the facts reflect that the indecent
exposure is to a child, the offense is probably an aggravated felony as a sexual abuse of a
minor under 8 U.S.C. § 1101(a)(43)(A). See U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th
Cir. 2000), cert. denied, 531 U.S. 982 (2000) (indecency with a child by exposure is an
aggravated felony under sexual abuse of a minor category); Matter of Rodriguez-
Rodriguez, 22 I&N Dec. 991 (BIA 1999) (holding that indecency with a child by
exposure is an aggravated felony under 8 U.S.C. §1101(a)(43)(A) sexual abuse of a
minor).
        The indecent exposure to a child is not an element of the offense and therefore,
under the categorical approach, the offense should not be classified as a sexual abuse of a
minor aggravated felony. However, a conviction under this statute is probably a sexual
abuse of a minor offense if the facts reflects that the defendant committed an indecent
exposure to a minor. See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) (holding that a
conviction for sexual assault was a sexual abuse of a minor offense because the court
determined the age of the victim); Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007)
(no need to consult record of conviction for factual element of deportation ground); but
see Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (conviction under unlawful sexual
contact statute that contained no element of the involvement of a child was not a sexual
abuse of a minor aggravated felony because under the categorical approach the offense
was not a sexual abuse of a minor offense).

18.2-388 Profane swearing and intoxication in public

Elements
      - profanely swears or curses or is intoxicated in public
      - “in public” means a place in open view, visible to the community, and could
         include defendant’s private property See Crislip v. Comm., 554 S.E.2d 96
         (Va. Ct. App. 2001)




                                            222
Crime involving moral turpitude
         The Virginia offense for being drunk in public or profanely swearing or cursing in
public is not a crime involving moral turpitude. The offense is generally a mala
prohibitum offense and is not a malum in se offense. There is no intent element in the
statute; the defendant need only swear or curse or be drunk in public view. See Matter of
Ajami, 22 I&N Dec. 949 (BIA 1999).
         The BIA has held that a statute punishing vagrancy is not a crime involving moral
turpitude. See Matter of G-R-, 5 I&N Dec. 18 (BIA 1953). The BIA in Matter of G-R-
interpreted a statute that punished a defendant for being idle, lewd, or dissolute person, or
associate of known thieves. The statute generally punished the condition, but could also
punish certain acts such as a single incident of dancing in the nude. The BIA reasoned
that because the statute punished the condition of vagrancy into which a defendant has
fallen, it was not a crime involving moral turpitude.
         Following the BIA’s reasoning in Matter of G-R-, a conviction under this Virginia
statute is not a crime involving moral turpitude because the statute punishes the state into
which one has fallen, i.e. intoxication. The Virginia statute also punishes acts such as
profanely swearing or cursing, but these acts could be the equivalent of dancing in the
nude, which was punishable under the California statute that the BIA found not to be a
crime involving moral turpitude in Matter of G-R-.

Aggravated felony
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. This statute contains no
element of the use, attempted use, or threatened use of physical force against the person
or property of another. The statute punishes profane words alone, which do not involve
the use or threatened use of force. Moreover, the statute does not punish intending to use
force against anyone. See Matter of Martin, 23 I&N Dec. 491 (BIA 2002) (intentional
conduct necessary for an offense to be a crime of violence under 18 U.S.C. § 16(a)). The
statute only punishes the use of profane language and therefore is not a crime of violence.

18.2-405 Rioting

Elements
   - unlawful use of force or violence
   - by three or more persons acting together
   - which seriously jeopardize the public safety, peace or order
   - if person carries at the time of riot any firearm or other deadly or dangerous
      weapon, class 5 felony

Crime involving moral turpitude
       A conviction under this statute is probably not a crime involving moral turpitude.
Although the statute requires that the defendants act with force or violence to seriously
jeopardize the public safety, there is no requirement that the conduct result in serious



                                             223
bodily injury. See Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) (reasoning that a
mens rea of recklessness coupled with a causation of serious bodily injury is a crime
involving moral turpitude).
         Furthermore, the intent element of the statute does not amount to a crime
involving moral turpitude. Matter of Ajami, 22 I&N Dec. 949. The mens rea of the
statute is unlawful, not intentional. See Reyes-Morales v. Gonzales, 435 F.3d 937 (8th
Cir. 2006) (holding that a statute punishing threatening behavior, without a mens rea, was
not a crime involving moral turpitude). The statute punishes a group of people for the
unlawful use of force or violence. Unlawful force or violence is not the same as
intentionally using force or violence or intentionally causing injury. Therefore, a
conviction under this statute is probably not a crime involving moral turpitude.

Aggravated felony
         Misdemeanor
         Crime of violence
         A conviction under this section of the statute is probably a crime of violence
under 18 U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)
if the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C.
§ 16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor.
         The offense is probably one that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another as required by
18 U.S.C. § 16(a). The statute punishes acting with force or violence. However, the
mens rea of the statute is unlawful, not intentional. The BIA has held that in order for an
offense to be a crime of vio lence under 18 U.S.C. § 16(a), the statute must punish
intentional conduct. See Matter of Martin, 23 I&N Dec. 491 (BIA 2002); see also Leocal
v. Ashcroft, 543 U.S. 1 (2004) (reasoning that a statute which has no mens rea or a mens
rea of negligence is not a crime of violence under 18 U.S.C. § 16(a)).
         Nonetheless, because the Virginia statute punishes the use of force or violence, it
is likely that courts reviewing this statute would find that this statute contains as an
element of the use of force, regardless of the fact that such use is unlawful, not
intentional. The Supreme Court in Leocal was interpreting the statute, 18 U.S.C. § 16(a),
to determine that the “use” of force meant that a person must act with some level of
intent, since a person could not accidentally “use” force. The Virginia statute has the
same language, “use of force.” Therefore, the Supreme Court’s interpretation of “use”
could also apply to an interpretation of this Virginia statute to hold that “use” means
some active employment of force or violence.
         Thus, a conviction under this statute is probably a crime of violence under 18
U.S.C. § 16(a).

         Felony
         Crime of violence
         A conviction under this section of the statute is probably a crime of violence
under 18 U.S.C. § 16 and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)
if the sentence imposed is at least one year. A conviction under this statute is probably a
crime of violence unde18 U.S.C. § 16(a). See analysis for Va. Code Ann. § 405
(misdemeanor)



                                            224
         This offense is also probably a crime of violence under 18 U.S.C. § 16(b) because
it is an offense that, by its nature, involves a substantial risk that the defendant will use
force against the person or property of another. The statute punishes acting as a group
with force or violence that seriously jeopardizes the public safety, peace or order. Many
of the actions punished under this statute may result in the defendants using physical
force against the person or property of another. However, the Supreme Court in Leocal v.
Ashcroft, 543 U.S. 1 (2004), reasoned that in order for an offense to be a crime of
violence under 18 U.S.C. § 16(b), the statute must have some mens rea that is more then
mere negligence. This statute does not have a mens rea because it punishes the unlawful
use of force or violence by a group. Also, the fact that such acts seriously jeopardize the
public safety, peace or order does not elevate the offense to a crime of violence under 18
U.S.C. § 16(b). The Supreme Court in Leocal held that statutes punishing conduct which
creates a risk of injury are not crimes of violence under 18 U.S.C. § 16(b) because there
must be a risk of use of force in order to classify the offense as a crime of violence under
18 U.S.C. § 16(b).
          However, because the Virginia statute punishes the use of force or violence, even
though that is unlawful use, the offense is probably one where the defendant must risk
using physical force against another, regardless of the fact that such use is unlawful, not
intentional. Thus, a felony conviction under this statute is probably a crime of violence
under 18 U.S.C. § 16(b) if the sentence is at least one year.

Other immigration consequences
        This offense may render a non-citizen deportable under 8 U.S.C. § 1227(a)(2)(C)
(crimes relating to firearms) if the person is convicted for carrying a firearm or deadly or
dangerous weapon during a riot. However, the list of weapons that a defendant under this
statute may use is broader than the federal list at 18 U.S.C. § 921(a), so it is necessary to
consult the record of conviction to determine what weapon the defendants used to
commit the offense.

18.2-406 Unlawful assembly

Elements
   - three or more persons assembled
   - share the common intent to advance some lawful or unlawful purpose
   - by the commission of an act or acts of unlawful force or violence likely to
      jeopardize public safety, peace or order
   - and the assembly actually tends to inspire persons of ordinary courage with well-
      grounded fear of serious and immediate breaches of public safety, peace or order
   - class 5 felony if person carried weapon at the time of unlawful assembly

Crime involving moral turpitude
        A conviction under this statute is probably not a crime involving moral turpitude.
Although the statute requires that the defendants act with force or violence to seriously
jeopardize the public safety, there is no requirement that the conduct result in serious
bodily injury. See Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). Rather, the conduct
must result in persons of ordinary courage fearing serious and immediate breaches of



                                            225
public safety. This statute, although it parallels threat statutes, is not similar enough to
the threats statutes that have been found to be morally turpitudinous. See Chanmouny v.
Ashcroft, 376 F.3d 810 (8th Cir. 2004) (holding that a statute punishing threats to
terrorize is a crime involving moral turpitude); Matter of Ajami, 22 I&N Dec. 949 (BIA
1999) (holding that a statute punishing a pattern of intentional, credible threats is a crime
involving moral turpitude). Rather, a person threatened by this Virginia statute need only
fear a breach of public safety, peace or order. The victim does not need to fear any
particularized harm, bodily injury, or death to his person.
         Furthermore, the intent element of the statute does not amount to a crime
involving moral turpitude. Matter of Ajami, 22 I&N Dec. 949. The mens rea of the
statute is unlawful, not intentional. See Reyes-Morales v. Gonzales, 435 F.3d 937 (8th
Cir. 2006) (holding that a statute punishing threatening behavior, without a mens rea, was
not a crime involving moral turpitude). The statute punishes a group of people for
assembling to advance a lawful or unlawful purpose by the commission of an act of
unlawful force or violence. Unlawful force or violence is not the same as intentionally
using force or violence or intentionally causing injury. Therefore, a conviction under this
statute is probably not a crime involving moral turpitude.

Aggravated felony
        Misdemeanor
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The offense is probably not
one that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another as required by 18 U.S.C. § 16(a). Although the
statute punishes the intent to advance a purpose by acts of force or violence, this is not
sufficient to amount to a threat of use of force.
        In Szucz-Toldy v. Gonzales, 400 F.3d 978 (7th Cir. 2005), the Seventh Circuit
held that harassment by phone was not a crime of violence under 18 U.S.C. § 16(a). The
elements of the harassment statute were (1) making a telephone call and (2) with the
intent to abuse, threaten, or harass someone at the called number. The court held that the
statute did no t have as an element the threatened use of force because the statute only
punished the making of the phone call with the requisite intent. The court looked only at
the elements of the statute and held that there was no element of threatened use of force.
The Virginia unlawful assembly statute is similar to the statute interpreted by the Seventh
Circuit because the Virginia statute does not require that the defendant actually engage in
any acts of force or violence. Rather, the crime is completed when the group unlawfully
assembles with the intent to advance some purpose by acts of force or violence.
Therefore, a conviction under this statute is not a crime of violence.

       Felony
       Crime of violence
       A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if



                                             226
the sentence imposed is at least one year. A conviction under this statute is not a crime of
violence under 18 U.S.C. § 16(a). See analysis for Va. Code Ann. § 18.2-406
(misdemeanor).
        A conviction under this statute is also not a crime of violence under 18 U.S.C. §
16(b) because the offense is not one that, by its nature, involves a substantial risk that the
defendant will use force against the person or property of another. The statute punishes
acting as a group assembled to advance some purpose by the commission of an act of
unlawful force or violence likely to jeopardize the public safety, peace or order. The acts
punishable under the statute are completed when the group gathers with the requisite
intent. There need not be any actual carrying out of such intent. Therefore, there is no
risk of use of force in the commission of the offense because the offense is completed
once the group gathers with the requisite intent.
        The fact that the acts intended would seriously jeopardize the public safety, peace
or order does not elevate the offense to a crime of violence under 18 U.S.C. § 16(b)
because 18 U.S.C. § 16(b) punishes statues where there is a risk of use of force, not a risk
of physical injury. See Leocal v. Ashcroft, 543 U.S. 1 (2004). Therefore, a conviction
under this statute is not a crime of violence.

Other immigration consequences
        A conviction under this statute may render a no n-citizen deportable under 8
U.S.C. § 1227(a)(2)(C) (crimes relating to firearms) if the person is convicted for
carrying a firearm or deadly or dangerous weapon during the unlawful assembly.
However, the list of weapons that a defendant under this statute may use is broader than
the federal list at 18 U.S.C. § 921(a), so it is necessary to consult to record of conviction
to determine whether the defendant is deportable under this ground.

18.2-415 Disorderly conduct

Elements
(A)
    - with intent to cause pub lic inconvenience, annoyance or alarm, or recklessly
      creating a risk thereof
    - in any street, highway, public building, or while in public place
    - engages in conduct having a direct tendency to cause acts of violence by the
      person or persons at whom, individually, such conduct is directed
 (B)
    - with intent to cause public inconvenience, annoyance or alarm, or recklessly
      creating a risk thereof
    - willfully being intoxicated, whether willfully or not, and whether such
      intoxication results from self-administered alcohol or drug of whatever nature
    - disrupts any meeting of the governing body of any political subdivision of this
      Commonwealth or any school, place of religious worship, etc.
    - if the disruption prevents or interferes with the orderly conduct of the meeting OR
    - if the disruption has a direct tendency to cause acts of violence by the person or
      persons at whom, individually, the disruption is directed




                                             227
(C)
      -   with intent to cause public inconvenience, annoyance or alarm, or recklessly
          creating a risk thereof
      -   willfully or while intoxicated, whether willfully or not, and whether such
          intoxication results from self-administered alcohol or drug or whatever nature
      -   disrupts the operation of any school or any activity conducted or sponsored by
          any school
      -   if the disruption prevents or interferes with the orderly conduct of the operation or
          activity OR
      -   if the disruption has a direct tendency to cause acts of violence by the person or
          persons at whom, individually, the disruption is directed

Crime involving moral turpitude
        A conviction under this statute is not a crime involving moral turpitude. The BIA
has held that disorderly conduct involves moral turpitude when the statute punishes lewd
or lascivious acts. Matter of Alfonso-Bermudez, 12 I&N Dec. 225 (BIA 1967); cf. Matter
of G-R-, 5 I&N Dec. 18 (BIA 1953) (reasoning that statute punishing vagrancy is not a
crime involving moral turpitude because statute punishes condition of vagrancy into
which the defendant has fallen and not certain acts). This statute does not involve lewd
or lascivious conduct and therefore is not a crime involving moral turpitude.

Aggravated felony
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. Although the statute punishes
engaging in conduct having a direct tendency to cause acts of violence by the person at
whom the conduct is directed, it is not a crime of violence under 18 U.S.C. § 16(a)
because the statute does not contain as an element the use, attempted use, or threatened
use of physical force. Rather, the statute punishes engaging in conduct having a direct
tendency to cause acts of violence or disrupting some gathering. The fact that the statute
has a tendency to cause another to use force or violence to stop the disorderly conduct
does not indicate that the statute itself contains as an element the use, attempted use, or
threatened use of physical force. This post-offense reaction by the victim does not
incorporate an element of the use of force into the disorderly conduct statute. Therefore,
a conviction under this statute is not a crime of violence.

18.2-416 Punishment for us ing abusive language to another

Elements
   - in the presence or hearing of another
   - curse or abuse such other person, or use any violent abusive language to such
      person concerning himself or any of his relations
   - or otherwise use such language
   - under circumstances reasonably calculated to provoke a breach of peace



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Crime involving moral turpitude
        This offense is not a crime involving moral turpitude. Under the assault line of
crime involving moral turpitude cases, this offense is not a crime involving moral
turpitude because there is no causation of serious bodily injury. See Matter of Fualaau,
21 I&N Dec. 475 (BIA 1996). Also, the statute does not involve threatening behavior in
any way. See Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004); Matter of Ajami, 22
I&N Dec. 949 (BIA 1999). In addition, the offense is not like any of the disorderly
conduct offenses that the BIA has found to be crimes involving moral turpitude because
the offense does not involve any lewd conduct; it merely punishes abusive language. See
Matter of Alfonso-Bermudez, 12 I&N Dec. 225 (BIA 1967).

Aggravated felony
         Crime of violence
         A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. This statute contains no
element of the use, attempted use, or threatened use of physical force against the person
or property of another and therefore is not a crime of violence under 18 U.S.C. § 16(a).
The statute punishes insulting words alone, which do not involve the use or threatened
use of force. The fact that the words punished by the statute are likely to cause violence
does not render the crime a crime of violence under 18 U.S.C. § 16(a) because that
secondary violence by the victim is not an element of the original offense. Moreover, the
statute does not punish intending to use force against anyone. See Matter of Martin, 23
I&N Dec. 491 (BIA 2002) (intentional conduct is necessary for an offense to be a crime
of violence under 18 U.S.C. § 16(a)). The statute only punishes the use of language that
is reasonably calculated to provoke a breach of the peace. Therefore, a conviction under
this statute is not a crime of violence.

18.2-427 Use of profane, threatening or indecent language over public airways

Elements
   - use obscene, vulgar, profane, lewd, lascivious, or indecent language OR
   - make any suggestions or proposal of an obscene nature, OR
   - threaten any illegal or immoral act with the intent to coerce, intimidate, or harass
      any person
   - over any telephone or citizens band radio

Crime involving moral turpitude
        A conviction under this section of the statute is probably not a crime involving
moral turpitude. Courts have decided that convictions for certain lewd, lascivious, and
obscene acts are crimes involving moral turpitude. See e.g., Cronin v. Tilinghast, 38 F.2d
231 (1st Cir. 1930). However, courts have never decided that convictions involving
obscene, lewd, or lascivious speech are crimes involving moral turpitude. The
prohibitions in Va. Code Ann. § 18.2-427 can be construed as merely regulatory



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prohibitions or disturbances of the peace and not crimes involving moral turpitude,
because the evil proscribed is merely the use of the public airways to transmit the
prohibited speech, but not the speech itself. But see Perkins v. Comm., 402 S.E.2d 229
(Va. Ct. App. 1991) (reasoning that the legislature intended to punish harassing conduct
under the Va. Code Ann. § 18.2-427 and not merely speech). The BIA has held that
statutes punishing merely disturbing the peace are not crimes involving moral turpitude.
See Matter of Alfonso-Bermudez, 12 I&N Dec. 225 (BIA 1967) (disturbing the peace,
without lewd acts, is not a crime involving moral turpitude); Matter of M, 2 I&N Dec.
196 (BIA 1944) (holding in dicta that disturbing the peace is not a crime involving moral
turpitude);
        A defendant must act with the intent to coerce, harass, or intimidate in order to be
convicted under this statute. See Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004)
(holding that a statute punishing making threats with the purpose to terrorize the victim
was a crime involving moral turpitude); Matter of Ajami, 22 I&N Dec. 949 (BIA 1999)
(holding that a stalking statute that punishes a pattern of credible threats against the
victim is a crime involving moral turpitude). The threats prohibited by this statute are
different than the pattern of threats that the BIA found to involve moral turpitude in
Matter of Ajami, 22 I&N Dec. 949 (BIA 1999). Under this Virginia statute, the threats
may not rise to the level of a threat to kill a person or inflict physical injury upon another
in the context that causes the individual receiving the threat to reasonably fear for his
safety or the safety of another. In addition, the threats made under the Virginia statute are
different than the threats under the statute interpreted in Matter of Ajami. A conviction
under this statute only requires that the defendant threaten to do any illegal or immoral
act. In addition, the language of this Virginia statute is similar to a statute punishing
threatening behavior, which the Eighth Circuit held was not a crime involving moral
turpitude in Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. 2006) (holding that
intentionally making telephone calls with reason to know that such calls would cause, and
did cause, the recipient to feel frightened was not a crime involving moral turpitude).
Therefore, a conviction under this statute is probably not a crime involving moral
turpitude.

Aggravated felony
        Crime of violence
        A conviction under this section of the statute is not a crime of violence under 18
U.S.C. § 16 and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) if
the sentence imposed is at least one year. The statute is only analyzed under 18 U.S.C. §
16(a), not 18 U.S.C. § 16(b), because it is a misdemeanor. The offense does not have as
an element the use, attempted use, or threatened use of physical force against the person
or property of another as required by 18 U.S.C. § 16(a).
        In Szucz-Toldy v. Gonzales, 400 F.3d 978 (7th Cir. 2005), the Seventh Circuit
held that harassment by phone was not a crime of violence under 18 U.S.C. § 16(a). The
elements of the harassment statute were (1) making a telephone call and (2) with the
intent to abuse, threaten, or harass someone at the called number. The court held that the
statute did not have as an element the threatened use of force because the statute only
punished the making of the phone call with the requisite intent. The court looked only at
the elements of the statute and held that there was no element of threatened use of force.



                                             230
         The Virginia statute has similar elements to the harassment statute interpreted by
the Seventh Circuit in Szucz-Toldy. The Virginia statute’s elements are completed when
the defendant uses a telephone or a CB radio with the intent to coerce, intimidate, or
harass any person. Virginia courts have held that this statute does not prohibit behavior,
but the intent to coerce, intimidate, or harass. See Perkins v. Comm., 402 S.E.2d 229 (Va.
Ct. App. 1991); Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975), cert. denied, 423 U.S. 906
(1975). Therefore, this Virginia statute contains no element of the use or threatened use
of force because the act of using a phone with the intent to intimidate or harass is
insufficient to establish the threatened use of force.
         The Virginia statute can also be distinguished from a threats statute that the
Eleventh Circuit found to have as an element the threatened use of physical force. See
U.S. v. Bonner, 85 F.3d 522 (11th Cir. 1996). In Bonner, the defendant had been
convicted under a federal statute for threatening to use violence against the president,
which the Eleventh Circuit found to have as an element of the threatened use of force.
The Virginia statute only includes a threat to do illegal or immoral conduct with an intent
to intimidate, coerce or harass. There is no intent to do violence or use force against the
person on the other end of the phone. See id.; see also Rosales-Rosales v. Ashcroft, 347
F.3d 714 (9th Cir. 2003) (holding that a statute punishing threats to commit a crime
resulting in bodily injury is a crime of violence under 18 U.S.C. § 16(a) because the
statute has as an element the threatened use force). Therefore, a conviction under this
statute is not a crime of violence under 18 U.S.C. § 16(a).




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